Shri Vishwanath Hetram Verma, Ahmedabad V. The Dy.CIT, Central Circle-2(4), Ahmedabad

ITSSA 43/AHD/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5038 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 19-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Assessee Lawyers: P M MEHTA
• Section: 143(3); 153A; 14A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) IT(SS)A. NO: 43/AHD/2015 (ASSESSMENT YEAR: 2008-09) SHRI VISHWANATH HETRAM VERMA PROP. VISHNU ENTERPRISES, D/176, PADMAVATINAGAR SOCIETY, NIKOL ROAD, NAROADA, AHMEDABAD V/S DCIT, CENTRAL CIRCLE-2(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABUPV 9902H APPELLANT BY : SHRI P. M. MEHTA, AR RESPONDENT BY : SHRI O. P. SHARMA, SR. D.R. ( )/ ORDER DATE OF HEARING : 25 -07-201 9 DATE OF PRONOUNCEMENT : 16 -09-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-12, AHMEDABAD DATED 24.12.2014 PERTAINING TO A.Y. 2008-09 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: IT(SS)A NO.4 3/AHD/2015 . A.Y. 2008-09 2 1 ON LAW AND IN FACTS AND CIRCUMSTANCES OF T HE APPELLANT'S CASE, THE LD. CIT(A) HAS ERRED IN UPHOLDING ADDITION OF RS. 41,41 ,000/- FOR LOAN TAKEN UNDER SECTION 68 OF THE ACT WHEN NO SUCH ADDITION IS CALL ED FOR. 2 ON LAW AND IN FACTS AND CIRCUMSTANCES OF T HE APPELLANT'S CASE, LD. ASSESSING OFFICER HAS ERRED IN MAKING ADDITION U/S 68 OF THE ACT FOR RS. 41,41,000/- WHEN THE ADDITION IS NOT AT ALL BASED ON ANY INCRIMINATI NG DOCUMENTS FOUND DURING THE COURSE OF SEARCH. THESE ADDITIONS ARE BEYOND THE SC OPE OF ASSESSMENT FRAMED U/S 153A OF THE ACT HENCE DESERVES TO BE DELETED. 3 THE APPELLANT CRAVES LEAVE TO ADD TO, ALTE R, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 2. AND ALSO ASSESSEE HAS TAKEN ADDITIONAL GROUND OF AP PEAL: 'IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANT'S CASE, THE ADDITIONS MADE BY THE A.O. WHILE PASSING THE ORDER U/S. 153C R.W.S. 153A R.W.S. 143[3] OF THE ACT, NOT BASED ON ANY INCRIMINATING DOCUMENTS F OUND DURING THE SEARCH, IS REQUIRED TO BE QUASHED.' IN THIS CONNECTION, WE HAVE TO BRING TO YOUR HONOUR S' KIND NOTICE THAT THAT BEFORE THE LD. CIT [A], THE ASSESSEE HAD RAISED THE GROUND AS UNDER:- 'IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANT'S CASE, THE ASSESSMENT ORDER FRAMED BY LD. A.O. IS BAD IN LAW A ND IS LIABLE TO BE QUASHED.' 3. FACTS OF THE CASE ARE A SEARCH U/S.132 OF INCOME TA X ACT WAS CARRIED OUT IN THE GROUP CASES OF SANGHVI GROUP ON 09.03.2011. IN THIS CONNECTION A NOTICE U/S. 143C READ WITH SECTION 153A WAS ISSUED TO THE ASSES SEE. IN THE RESPONSE TO THE SAME, ASSESSEE FILED RETURN OF INCOME ON 01.11.2012 DECLARING TOTAL INCOME AT RS. 110160/-. 4. THE A.O. PASSED ORDER ON 31.03.2013 U/S. 153C READ WITH SECTION 153A READ WITH SECTION 143(3) OF THE ACT DETERMINING THE TOTA L INCOME AT RS. 4286890/- BY MAKING ADDITION TO THE RETURNED INCOME OF UNEXPL AINED CASH CREDIT U/S. 68 OF RS. 41.41 LAKHS AND ADDITION U/S. 14A OF RS. 357 30/-. IT(SS)A NO.4 3/AHD/2015 . A.Y. 2008-09 3 5. AGAINST THE SAID ORDER, ASSESSEE PREFERRED FIRST ST ATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSE E. 6. NOW BY WAY OF SECOND APPEAL, ASSESSEE HAS COME BEFO RE US. 7. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER AND HEARD BOTH THE PARTIES. IN THIS CASE, A.O. HAS TREATED THE LOA N OF RS. 4034000/- AND RS. 1,07,000/- RECEIVED FROM MUKESH K. VERMA AND BABUBH AI DESAI RESPECTIFVELY AS NON-GENUINE LOAN U/S. 68 OF THE ACT. THE ADDITIO N MADE BY A.O. IS CONFIRMED BY THE LD. CIT(A) ON THE GROUND THAT APPE LLANT HAS FAILED TO EXPLAIN SOURCE OF DEPOSIT IN THE BANK ACCOUNT OF THE CREDIT ORS. 8. IN SUPPORT OF LOAN RECEIVED FROM SHRI BABUBHAI DESA I OF RS. 1,07,000/- BABUBHAI APPEARED BEFORE THE A.O. AND SUBMITTED COP Y OF CONFIRMATION ACCOUNT OF ALONG WITH PAN DETAILS OF ALL THE TRANSA CTIONS HAVE MADE THROUGH BANKING CHANNEL. 9. SO FAR LOAN AMOUNT OF RS. 40,34,000/- RECEIVED FROM MUKESH K. VERMA IS CONCERNED, A COPY OF CONFIRMATION ACCOUNT DULY SIGN ED BY MUKESH K. VERMA COPY OF BANK STATEMENT, ACKNOWLEDGEMENT COPY OF INC OME TAX RETURN FILED BY MUKESH K. VERMA FOR ASSESSMENT YEAR 2010-11 AND COP Y OF PAN AS WELL AS A COPY OF LEDGER ACCOUNT OF RELIGARE SECURITY LTD. TH ROUGH WHOM FUNDS OF RS. 40.34 LACS WERE RAISED THROUGH SALE OF SHARES. 10. IN OUR CONSIDERED OPINION, APPELLANT HAS GIVEN ALL THE DETAILS WITH REGARD TO LOAN OF RS. 4034000/- AND IN SUPPORT OF ITS CONTENTION, LD. A.R. CITED A JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. D HARAMDEV FINANCE (P.) IT(SS)A NO.4 3/AHD/2015 . A.Y. 2008-09 4 LTD. [2014] 43 TAXMAN.COM 395 (GUJ.) WHEREIN HONBL E GUJARAT HIGH COURT HAS HELD AS UNDER: ' II. SECTION 68 OF THE INCOME TAX ACT, 1961 - CASH CREDIT (BURDEN OF PROOF) - VARIOUS ADDITIONS WERE MADE TO ASSESSEE'S INCOME ON ACCOUNT OF CASH CREDITS - IT WAS FOUND THAT IN RESPECT OF SAID CREDITS ASSESSEE HAD FILED PAN OF CREDITORS, THEIR CONFIRMATION AND THEIR BANK STATEMENTS WHICH ESTABL ISHED THEIR CREDITWORTHINESS - . MOREOVER, TRANSACTIONS WERE MADE THROUGH BANKING CH ANNELS - WHETHER ANY ADDITION COULD NOT BE MADE TO ASSESSEE'S INCOME UNDER SECTIO N 68 - HELD, YES. [PARA 5 ][ IN FAVOUR OF ASSESSEE]' THE HON'BLE COURT HAS HELD THAT NO ADDITION ON ACCO UNT OF CASH CREDITS BE MADE, WHERE ASSESSEE HAD GIVEN PAN OF CREDITORS, THEIR CO NFIRMATION AND THEIR BANK STATEMENT WHICH ESTABLISHED THEIR CREDITABILITY. 11. IN OUR CONSIDERED OPINION, ASSESSEE CASE IS SQUAREL Y COVERED BY JURISDICTIONAL HIGH COURT JUDGMENT WHEREIN IT IS HELD THAT ADDITIO N CANNOT BE MADE IN ASSESSEES HAND. 12. THUS, IN VIEW OF THE FACTS AND CIRCUMSTANCES AND RE SPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE GUJARAT HIGH COURT, WE ALLOW TH E APPEAL OF THE ASSESSEE. 13. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN OPEN COURT ON 16 - 09- 2019 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 16/09/2019